combat." The court held the instruction erroneous, because the killing would not be murder, under the circumstances stated, unless the difficulty was provoked by the slayer with the intent to kill his adversary or to do him great bodily harm. What is said upon the law of self-defense can scarcely be regarded as authority.

4. It is urged that the instructions are erroneous because the court told the jury that, before a person can justify the taking of a human life on the ground of self-defense, "he must take and employ all reasonable means within his power, consistent with his safety, to avert the danger and avoid the necessity for the killing," and that "the danger must be unavoidable, according to the facts and circumstances as they honestly appeared at the time to the defendant," etc. These instructions are merely the language of the books and decisions, and, when construed in connection with the remainder of the charge, it is clear the court did not intend to instruct the jury that it was the duty of the defendant, if he was without fault, to retreat or flee from his adversary in order that he might justify the killing on the ground of self-defense. On the contrary, the court plainly charged that, if the defendant was traveling in a public highway, he was where he had a right to be, and was not required to retreat; that, if he was assailed in such manner as to induce in him a reasonable belief that he was in actual danger of losing his life or of suffering great bodily harm, he would be justified in defending himself, although the danger was not real, but only apparent; that it was not necessary that the assault should have been made by deceased with a dangerous weapon, but that his fists alone were sufficient, if there was an apparent purpose and present ability on his part to inflict death or great bodily harm, and the defendant had reason to believe and did so believe; that it was only necessary that the danger be unavoidable according to the facts and circumstances as they honestly appeared at the time to the defendant. The effect of these instructions as a whole is that while the defendant, if he was not the aggressor, was not obliged to retreat or fly from his assailant, it was his duty to employ all reasonable means within his power, consistent with his own

safety, to avoid the danger, and avert the necessity of taking the life of the assailant. This is the law, and was so stated in the former opinion: State v. Gray, 43 Or. 446 (74 Pac. 927); State v. Porter, 32 Or. 135 (49 Pac. 964); 1 McClain, Crim. Law, § 311; Kerr, Homicide, § 180; State v. Sumner, 74 S. C. 32 (74 Am. St. Rep. 707, note).

Complaint is also made because it is said the court gave too much prominence in its charge to the fact that the defendant must not have been the aggressor, and must not have brought on the difficulty, etc.; but this is owing to the prolixity of the charge, due, probably, to the numerous instructions requested by the parties, and the evident earnest desire of the court to present the law of the case fully and clearly to the jury.

5. Again, it is insisted that the court confused "justifiable" and "excusable" homicide, but these terms are often used as synonyms in the books: 1 McClain, Crim. Law, § 296. No injury could have come to the defendant by their use in the case at bar. Several instructions were requested by the defense to the effect that the defendant had a right to act upon appearances, and to repel the assault of the deceased, whether it was made with a deadly weapon or not; that no person has a right to advance into a public highway and administer a merciless castigation upon his neighbor who is lawfully there, and that a strong man with his fists alone is capable of inflicting great bodily harm upon a victim much inferior in strength and endurance, and he may even thus take his life; and that in arriving at a verdict. they should take into consideration the relative sizes, ages, and strength of the parties; but all these points were sufficiently covered by the general charge, and there was no error in refusing to give the instructions as requested.

6. Preliminary to its charge as to the law applicable to the facts of the case and as introductory thereto, the court stated to the jury what would constitute excusable homicide as defined by the statute (B. & C. Comp. § 1758), and that "an intent to murder is conclusively presumed from the deliberate use of a deadly weapon, causing death within a year, if not done in selfdefense or in the rightful and necessary defense of property."

Objections are made to both of these instructions on the ground that the first is outside the testimony, and the second imposed the burden of proof upon the defendant of showing that the killing was in self-defense. It is a rule of law that an instruction upon a matter not in evidence, if prejudicial to the party complaining, is reversible error, but the definition here given of excusable homicide was favorable to the defendant. If any inference was to be drawn therefrom, it was that, in the opinion of the court, there was some evidence tending to show that the defendant was entitled to an acquittal on the ground that the killing was excusable under the statute, and therefore he has no right to complain.

7. The other instruction was merely stating to the jury a presumption of law declared by the statute as interpreted by this court in previous decisions, and did not, as we conceive it, in any manner shift the burden of proof: State v. Carver, 22 Or. 602 (30 Pac. 315); State v. Gibson, 43 Or. 184 (73 Pac. 333). It was an instruction which had no proper place in a trial for manslaughter, but was not prejudicial to the defendant, nor did it affect any substantial right of his.

The court at the beginning of its charge told the jury that the former verdict was an acquittal of the crime of murder in the first or second degree, and that the defendant could not on a retrial be convicted of any greater offense than manslaughter. The case was tried thoughout by the State and the defense as a prosecution for manslaughter alone, and evidence was admitted and instructions of the court framed on that theory. The cause was properly and fairly submitted to the jury, and should not now be reversed because the court improperly alluded to or stated a statutory rule of evidence which was not applicable to the case, but which could not have affected the substantial right of the defendant: B. & C. Comp. § 1484; State v. Moore, 32 Or. 65 (48 Pac. 468).

The judgment of the court below is affirmed.

AFFIRMED.

Decided 19 December, 1904; rehearing denied.

WALLOWA COUNTY v. OAKES.

78 Pac. 892.

FEES OF JUSTICES ACTING AS COMMITTING MAGISTRATES.

1. Under Section 1583 of B. & C. Comp., declaring justices of the peace to be magistrates, Section 1582, defining the office of magistrate, and Section 3000, fixing the fees of justices, the fees thus prescribed relate to the duties as committing magistrate under Sections 1620-1624, as well as to those of justice, so that a magistrate who has performed the services is entitled to the fees prescribed by Section 3000.

ACTION AGAINST COUNTY FOR FEES.

2. Where an officer's fees are regulated by law, and he has performed the services entitling him thereto, the county court must audit and allow his claim, and on refusal to do so an action at law may be maintained against the county to recover the sum due.

From Wallowa: ROBERT EAKIN, Judge.

Statement by MR. JUSTICE MOORE.

This is a special proceeding to review the action of an inferior court. The facts are that an information having been filed with the defendant H. E. Oakes, as a magistrate, who was then a justice of the peace of Wallowa County, charging the commission of the crime of libel, the person accused was apprehended, and brought before him, and, after hearing the proof, he concluded that the evidence produced was insufficient to sustain the charge, and released the prisoner. The warrant of arrest, depositions, and memoranda made at the examination were returned to the circuit court for that county, and there was filed with the county clerk thereof a certified bill of the fees prescribed for a justice of the peace for the performance of the services rendered, amounting to $6.35, and claimed to have been earned by Oakes in the investigation of the charge, but the county court of that county, sitting as a board of commissioners, refused to audit or allow any part of the bill. An action was thereupon commenced by Oakes against Wallowa County in a justice's court thereof, before the defendant A. E. Cray, as justice of the peace, to recover the sum stated. A demurrer to the complaint on the ground that it did not state facts sufficient to constitute a cause of action having been overruled, judgment for want of an answer was rendered for the sum demanded, to review which these proceedings were instituted. A transcript of the action brought before Cray having been certified up to the circuit court, the writ of review was dismissed, from which judgment Wallowa County

appeals. The case was submitted on briefs under the proviso of Rule 16: 35 Or. 587, 600. AFFIRMED.

For appellant there was a brief over the names of Leroy Lomax, District Attorney, and Daniel Webster Shehan.

For respondent there was a brief and an oral argument by Mr. James A. Burleigh.

MR. CHIEF JUSTICE MOORE delivered the opinion of the court. 1. It is contended by appellant's counsel that no fees are prescribed by statute for the performance of any service by a judicial officer acting as a magistrate, and, this being so, Oakes's claim therefor, when rejected by the county court, could not be made the basis of an action against the county, for which reason the trial court erred in not setting aside the judgment of the justice's court and in dismissing the writ of review. The rule is universal that the right of an officer to recover fees for the performance of a duty enjoined by law must be found in the act conferring it: Jackson v. Siglin, 10 Or. 93; Pugh v. Good, 19 Or. 85 (23 Pac. 827); Houser v. Umatilla County, 30 Or. 486 (49 Pac. 867). The statute regulates the fees to which a justice of the peace is entitled (B. & C. Comp. § 3000), but it is argued that they are for the discharge of judicial duties only, and that the examination of a criminal charge does not come within the class of services for the performance of which remuneration is provided. Justices' courts have jurisdiction of certain misdemeanors committed or triable in their respective counties (Laws 1903, p. 295), but the list does not include criminal libel. Though that crime is classed as a misdemeanor (B. & C. Comp. § 1778), prosecutions therefore must be by indictment (B. & C. Comp. § 1319), thereby depriving a justice of the peace of jurisdiction of the subject-matter, except to examine the case and to hold the defendant to answer or discharge him: B. & C. Comp. § 1620 et seq. A magistrate is an officer having power to issue a warrant for the arrest of a person charged with the commission of a crime: B. &. C. Comp. § 1582. The following persons are magistrates: (1) The justices of the supreme court, (2) the judges of the circuit court, (3) the county judges and justices